Mosley v. USA

Filing 20

ORDER: The Government's Motion for Order Authorizing Criminal Defense Attorney to Provide Written Response (Doc. 16) is GRANTED. Attorney Smith is AUTHORIZED to provide a response addressing Petitioner's allegations of ineffective assistance of counsel to the Government's counsel for its use in this case. Signed by Magistrate Judge Reona J. Daly on 11/14/2023. (dsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BERNARD MOSLEY,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 22-cv-2804-DWD

ORDER
DUGAN, District Judge:
Now before the Court is the Government’s Motion for Order Authorizing Criminal
Defense Attorney to Provide Written Response (Doc. 16). Previously, this Court found
that Petitioner’s Motion pursuant to 28 U.S.C. § 2255 raised allegations of ineffective
assistance of counsel, among other claims, and ordered the Government to respond (Doc.
10).

Petitioner was represented by Attorney Timothy J. Smith with respect to the

allegations in his § 2255 motion. By its Motion, the Government asks the Court for an
Order permitting Attorney Smith to respond to Petitioner’s allegations with information
that may include communications ordinarily protected from disclosure by the attorneyclient privilege.
Considering the guidance in United States v. Evans, 113 F.3d 1457 (7th Cir. 1997), it
is advisable for a defense attorney to obtain a judicial determination that a disclosure
would not violate the attorney-client privilege before disclosing confidential
communications and other information, even if the attorney believes that a waiver of the

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privilege has clearly occurred. Id. at 1468. Further, “[i]t has long been the rule in the
federal courts that, where a habeas petitioner raises a claim of ineffective assistance of
counsel, he waives the attorney-client privilege as to all communications with his
allegedly ineffective lawyer.” Bittaker v. Woodford, 331 F.3d 715, 716–17 (9th Cir. 2003); see
also United States v. Pinson, 584 F.3d 972, 978 (10th Cir. 2009) (“Given the ample,
unanimous federal authority on point, we hold that when a habeas petitioner claims
ineffective assistance of counsel, he impliedly waives attorney-client privilege with
respect to communications with his attorney necessary to prove or disprove his claim.”).1
Nevertheless, to ensure Petitioner knowingly intended to invoke the waiver of his
attorney-client privilege by filing his § 2255 Motion, the Court directed Petitioner to file
any objections to the Government’s Motion by October 20, 2023 (Doc. 17). This deadline
was later extended to November 7, 2023, to ensure Petitioner received a copy of the
Court’s Order at the address currently on file for Petitioner (Doc. 19). The Court advised
Petitioner that if no objections were received by this deadline, the Court would construe
Petitioner’s silence as a waiver of his attorney-client privileges concerning
communications related to the claims of ineffective assistance of counsel at issue in his
Motion (Doc. 19) The Court further advised Petitioner that a waiver here may result in

1 In accord In re Lott, 139 F. App'x 658, 660 (6th Cir. 2005) (“In the habeas context, courts have found implied
waiver of the attorney-client privilege when the petitioner ‘injects into [the] litigation an issue that requires
testimony from its attorneys or testimony concerning the reasonableness of its attorneys’ conduct.’”)
(quoting Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001)); Tasby v. United States, 504 F.2d 332, 336
(8th Cir. 1974) (“When a client calls into public question the competence of his attorney, the privilege is
waived.”); Laughner v. United States, 373 F.2d 326, 327 (5th Cir. 1967).

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communications between Petitioner and his criminal defense attorney being disclosed to
the Government and the Court (Doc. 19).
Petitioner did not file a response or objection to the Government’s Motion by the
November 7, 2023 deadline. Accordingly, the Court construes this silence as Petitioner’s
waiver of his attorney-client privileges only as those privileges relate to the allegations
of ineffective assistance of counsel at issue in his § 2255 motion. Therefore, the Court
FINDS that Petitioner’s allegations of ineffective assistance of counsel against Attorney
Smith operate as a waiver of the attorney-client privilege as to matters relevant to the
issues in his § 2255 motion. The Government’s Motion for Order Authorizing Order
Authorizing Criminal Defense Attorney to Provide Written Response (Doc. 16) is
GRANTED. Attorney Smith is AUTHORIZED to provide a response addressing
Petitioner’s allegations of ineffective assistance of counsel to the Government’s counsel
for its use in this case.
SO ORDERED.
Dated: November 14, 2023
s/David W. Dugan
DAVID W. DUGAN
United States District Judge

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